Citation Nr: 1107144
Decision Date: 02/22/11 Archive Date: 03/04/11
DOCKET NO. 06-17 590 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis,
Indiana
THE ISSUE
Entitlement to a total disability rating based on individual
unemployability due to service-connected disabilities.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
S.J. Janec, Counsel
INTRODUCTION
The Veteran had active military service from February 1987 to
March 1989.
This matter initially came before the Board of Veterans' Appeals
(Board) from a February 2004 rating decision of the Indianapolis,
Indiana, Regional Office (RO) of the Department of Veterans
Affairs (VA) that granted an increased 40 percent rating for the
service-connected low back disability.
The Veteran was scheduled for a videoconference hearing before a
Veterans Law Judge in October 2009. However, he failed to
report. Hence, his hearing request is considered withdrawn. See
38 C.F.R. § 20.702 (d) (2010).
In a November 2009 decision, the Board denied entitlement to a
rating in excess of 40 percent for the service-connected low back
disability and remanded the issue of entitlement to a total
disability rating based on individual unemployability due to
service-connected disability in accordance with Rice v. Shinseki,
22 Vet. App. 447 (2009). In a November 2010 Statement of the
Case, the RO denied entitlement to a total disability rating
based on individual unemployability due to service-connected
disability. He was provided with a VA Form 9 to continue his
appeal of the issue and advised that he had a period of 60 days
to file it. However, a VA Form 9 was not received within 60
days. Nevertheless, his representative did file a Brief in
support of the claim within one year of the action notifying the
Veteran that the claim had been denied (i.e., the November 15,
2010 Statement of the Case). Hence, the Board has accepted this
as a timely substantive appeal on the issue. Regrettably,
another remand is necessary.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant if
further action is required.
REMAND
In the November 2010 Statement of the Case, the RO referenced
outpatient treatment reports from the Marion VA Medical Center
(VAMC) dated from July 2003 through October 2010 and from the
Indianapolis VAMC dated from July 2003 through October 2009.
However, a review of the file, including the temporary file
created in conjunction with the remand, does not show that any
additional VAMC outpatient records have been associated with the
record. In particular, the Board has not been able to locate any
VAMC records dated in 2009 and/or 2010 in the file despite the
notation in the November 2010 Statement of the Case, other than
the July 2010 VA examination report. Consequently, it appears
that the record is not compatible with the one that was before
the RO when the issue was adjudicated, and the Board may not
proceed with an appellate decision until the record is complete.
Accordingly, the case is REMANDED for the following action:
1. The RO should obtain the names and
addresses of all medical care providers who
treated the Veteran for his service-connected
disabilities from January 2009 to the
present. After securing any necessary
release, the RO should obtain these records
and associate them with the file. In
particular, the RO should obtain copies of
all VAMC records dated from January 2009
through October 2009 as referenced in the
November 2010 Statement of the Case.
2. After the development requested above has
been completed, the issue of entitlement to a
total disability rating based on individual
unemployability due to service-connected
disabilities should be readjudicated in light
of all of the evidence of record. If the
benefit sought on appeal remains denied, the
Veteran and his representative, if any,
should be furnished a Supplemental Statement
of the Case and given the opportunity to
respond.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2010).
_________________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2010).